Jenkins v. State

We here address the question whether this Court currently has jurisdiction to review a decision of a district court of appeal which reads in its entirety “Per Curiam Affirmed” where a dissenting opinion is filed in the case. We answer the question in the negative.

Review of the decision of the District Court of Appeal, Fourth District, was sought in this cause by notice to invoke the certiorari jurisdiction of this Court filed April 11,1980. By his application petitioner asserts that the decision of the district court is in conflict with decisions of other districts or with Supreme Court decisions upon the issue of whether uncorroborated hearsay information from a confidential informant, who had not divulged the source of his information, was sufficient to establish probable cause for a warrantless search of a vehicle. Prior to trial, petitioner moved to suppress evidence seized in a search of his vehicle. The trial court denied the motion to suppress. Petitioner subsequently entered a plea of nolo contendere preserving his right to appeal the trial court ruling. On review the district court affirmed the ruling of the trial court without opinion. One member of the three-judge panel dissented to the decision of the majority in a comprehensive opinion which recited the facts extensively and concluded that under prevailing law the search violated petitioner’s fourth amendment rights.

After ratification by the people of this state at an election held on March 11, 1980, article V, section 3 of the Florida Constitution pertaining to the jurisdiction of the Supreme Court was substantially revised. In particular, section 3(b)(3) underwent a dramatic change. Prior to April 1, 1980 (the effective date of the amendment), the provisions of section 3(b)(3) relating to review of conflicting decisions read as follows:

May review by certiorari any decision of a district court of appeal that is in direct conflict with a decision of any district court of appeal or of the supreme court on the same question of law. .

Post April 1, 1980, that section reads with respect to review of conflicting decisions:

May review any decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. .

(Emphasis supplied.)

The constitutional amendment must be viewed in light of the historical development of the decisional law extant at the time of its adoption and the intent of the framers and adopters. Our inquiry must begin with the amendment to article V of the Florida Constitution occurring in 1956, whereby the district courts of appeal were created. In grappling with the significance of the revised jurisdiction of this Court, a tone was set early on. In Ansin v. Thurston, 101 So.2d 808, 810 (Fla.1958), speaking through Justice Drew, the Court said:

We have heretofore pointed out that under the constitutional plan the powers of this Court to review decisions of the district courts of appeal are limited and strictly prescribed. Diamond Berk Insurance Agency, Inc. v. Goldstein, Fla., 100 So.2d 420; Sinnamon v. Fowlkes, Fla., 101 So.2d 375. It was never intended that the district courts of appeal should be intermediate courts. The revision and modernization of the Florida judicial system at the appellate level was prompted by the great volume of eases reaching the Supreme Court and the consequent delay in the administration of justice. The new article embodies throughout its terms the idea of a Supreme Court which functions as a supervisory body in the judicial system for the State, exercising appellate power in certain specified areas essential to the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute.

To fail to recognize that these are courts primarily of final appellate jurisdiction and to allow such courts to become intermediate courts of appeal would result in a condition far more detrimental to the general welfare and the speedy and efficient administration of justice than that which the system was designed to remedy.

This was followed by Lake v. Lake, 103 So.2d 639 (Fla.1958), where Justice Thomas again reviewed the history of and purposes for the 1956 amendment to article V and held that in order to fulfill those purposes, a “per curiam” decision without opinion of a district court of appeal would not be reviewed by this Court upon petition for certiorari based on “direct conflict” jurisdiction except in those rare cases where the “restricted examination required in proceedings in certiorari [revealed] that a conflict had arisen with resulting injustice to the immediate litigant.” Id. at 643. Some seven years later, however, in an opinion which observed that the rule of Lake v. Lake had been eroded de facto if not de jure by subsequent actions of the Court, a majority of the Court determined that there was jurisdictional power under section 3(b)(3) to review district court decisions rendered “per curiam” without opinion if from the “record proper” conflict with another decision could be discerned. Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965).

In the interim the Court had already concluded that conflict certiorari jurisdiction could be founded on a dissenting opinion to a per curiam majority decision rendered without opinion. Huguley v. Hall, 157 So.2d 417 (Fla.1963). This position was adopted by a majority of the Court without discussion or rationale and has been subsequently followed without amplification of reasoning. E. g., Autrey v. Carroll, 240 So.2d 474 (Fla.1970); Commerce National Bank in Lake Worth v. Safeco Insurance Co., 284 So.2d 205 (Fla.1973). In the Commerce National Bank decision, however, the impediments to relying on the factual statement contained in a dissenting opinion to establish conflict jurisdiction were observed:

When facts and testimony are set forth in a majority opinion, they are assumed to be an accurate presentation upon which the judgment of the court is based. However, a dissent does not rise to a similar level of dignity and is not considered as precedent; note, for example, that West Publishing Company does not offer headnotes for dissents, regardless of their legal scholarship. By definition, a dissent contains information, interpretations or legal analysis which has been rejected in whole or part, by the majority. It is also possible that the majority accepts matters set forth in the dissent, but for other reasons declines to follow its line of thought. The majority is under no compulsion to respond to a dissent or to set out the measure of their reluctance to agree. The issuance of a per curiam opinion without comment or citation of authority remains the prerogative of the majority.

Id. at 207.

More recently, the wisdom of the jurisdictional policies expressed in Foley and Huguley have been brought into question by several members of this Court. See Florida Greyhound Owners & Breeders Association, Inc. v. West Flagler Associates, Ltd., 347 So.2d 408, 408 (Fla.1977) (England, J., concurring; Overton, C. J., concurring specially); Golden Loaf Bakery, Inc. v. Charles W. Rex Construction Co., 334 So.2d 585, 586 (Fla.1976) (England, J. and Overton, C. J., concurring); AB CTC v. Morejon, 324 So.2d 625, 628 (Fla.1975) (England and Overton, JJ., dissenting).

It was against this jurisprudential backdrop and in the face of a staggering case load that in November, 1979, this Court urged the legislature, meeting in special session, to enact a proposed amendment to section 3 of article V of the Florida Constitution to limit the jurisdiction of the Supreme Court. Times were not unlike the year 1956 when the challenge confronting the drafters of that amendment to the judicial article was described thus:

The means and procedure required to accomplish the improvement were difficult, complicated, tedious and onerous.

Yet the determination was not lacking for congestion in the court of last resort had become almost intolerable. The time had come when the court, working at top speed, with cases, except extremely emergent ones, set in the order of their maturity, was hearing arguments as late as fourteen months after the cases were ready for oral presentation.

For about eighteen months after its creation the [Judicial] Council, in periodic meetings, debated and deliberated the method which might most effectively modernize a system that by overloading had ceased to function as it should to assure litigants justice without undue, or even ruinous, delay. The words of Gladstone were often heard: “Justice delayed is justice denied.”

Lake v. Lake, 103 So.2d 639, 640-41. The legislature responded through enactment of Senate Joint Resolution No. 20-C, which forms the language of the current section 3 of article V.

At hearings before the legislature and in countless meetings with representatives of The Florida Bar, The Conference of Circuit Judges of Florida, the Appellate Judges’ Conference, The League of Women Voters as well as other interested organizations too numerous to recount, members of this Court represented that one of the intents and effects of the revision of section 3(b)(3) was to eliminate the jurisdiction of the Supreme Court to review for conflict purposes per curiam decisions of the district courts of appeal rendered without opinion, regardless of the existence of a concurring or dissenting opinion. These same representations were made consistently to the public at large preceding the ballot on the proposed amendment. There can be little doubt that the electorate was informed as to this matter, because opponents of the amendment broadcast from one end of this state to the other that access to the Supreme Court was being “cut off,” and that the district courts of appeal would be the only and final courts of appeal in this state. With regard to review by conflict certiorari of per curiam decisions rendered without opinion, they were absolutely correct.

The pertinent language of section 3(b)(3), as amended April 1, 1980, leaves no room for doubt. This Court may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. The dictionary definitions of the term “express” include: “to represent in words”; “to give expression to.” “Expressly” is defined: “in an express manner.” Webster's Third New International Dictionary, (1961 ed. unabr.). The single word “affirmed” comports with none of these definitions. Furthermore, the language and expressions found in a dissenting or concurring opinion cannot support jurisdiction under section 3(b)(3) because they are not the decision of the district court of appeal. As stated by Justice Adkins in Gibson v. Maloney, 231 So.2d 823, 824 (Fla.1970), “[i]t is conflict of decisions, not conflict of opinions or reasons that supplies jurisdiction for review by certiorari.” (Emphasis in original.)

Accordingly, we hold that from and after April 1, 1980, the Supreme Court of Florida lacks jurisdiction to review per cu-riam decisions of the several district courts of appeal of this state rendered without opinion, regardless of whether they are accompanied by a dissenting or concurring opinion, when the basis for such review is an alleged conflict of that decision with a decision of another district court of appeal or of the Supreme Court. The application for review in the instant case having been filed subsequent to March 31, 1980, it is therefore dismissed.

ENGLAND, C. J., and BOYD, OVER-TON, ALDERMAN and McDONALD, JJ., concur.

ENGLAND, C. J., concurs specially with an opinion.

ADKINS, J., dissents with an opinion.

Jenkins v. State, 382 So.2d 83 (Fla. 4th DCA 1980).